It's not quite two years since the Prime Minister responded to one of the inevitable perils of public leadership -- a live-microphone accident -- by making a complaint under the Crimes Act, thus triggering an investigation that saw the country's major news organisations hit with search warrants during an election campaign.

I wrote about it in a post titled Criminalising Journalism, noting that the police were demanding from Radio New Zealand “unpublished material relating to interviews it conducted” with Bradley Ambrose, the cameraman who wound up with the recording of John Key's conversation with John Banks at a media stunt; the conversation the Prime Minister, who had invited several dozen journalists along, maintained was private:

RNZ should, of course, on no account, surrender any such material. To do so would be to compromise its ability to conduct sensitive interviews in future. Even if there is nothing of note in any material it holds – and, frankly, it’s not clear it even holds anything it hasn’t broadcast – to willingly hand it over is tantamount to giving up a source. That it has even been subject to such a request is extremely troubling.

What the police are doing here is criminalising journalism.

It’s not clear who made the decision to escalate a political embarassment to the level of a criminal complaint, or whether the complaint was made in an attempt to shut down the story, or out of a genuine sense of injury.

Turns out, it was actually worse than that.

Bevan Hurley's story in the Herald on Sunday today reveals that the police helped themselves to Ambrose's private communications with his lawyer, his family and his colleagues. Documents released to Hurley under the OIA showed that two months after the incident the police served Vodafone with a search warrant to gain access to his text messages.

Last May, the police said they would be refusing to release any documents from their file on the "teapot tapes" case. It's easy now to see why. Their behaviour in investigating what was a relatively minor alleged offence was completely outrageous.

But it's an ill wind: the text messages appear to back up what has been Ambrose's position all along: that the recording was inadvertent. It's not hard to see why lawyers for the Prime Minister and the police were willing to reach a settlement with Ambrose. But it casts an interesting light on the warning issued against Ambrose by Police Assistant Commissioner Malcolm Burgess, and the PM's insistence that "at the end of the day, [Ambrose's] actions have been deemed unlawful."

We can now see that the party doing the deeming had its own case to answer.

There are similarities between what happened here and the sprawling shemozzle around the release of Andrea's Vance's information. In both cases, the complainant was the Prime Minister. In both cases, the public servants tasked with investigation were complicit in gross and puzzling over-reaches. In both cases, the truth has had be extracted from those responsible. And in both cases, Steven Joyce has been drafted in to bully and harangue.

In the background to all this lie the GCSB and Telecommunications Intercept bills, with their expansion of powers and paring back and politicisation of oversight. The question now is not just how much you trust the executive, but how much you can trust an executive that presides over the screaming absence of constitutional empathy that this one does.

99 responses to this post

While the government/police could use the terrorism act to force you to give up the passwords to encrypted texts/emails, you'd at least then know they were looking and it would be a PR field day if they did that to any journalists. (Especially if that had happened in this case).

Journalists (especially, though "normal" people should be trying as well) should begin encrypting _everything_ they do/send between themselves and their sources. While it wont protect against metadata, if done properly they'll know when the government is onto them, assuming the govt can't decrypt their files/messages.

For instance, there's Redphone/Textsecure for android phones (iphones soon) and S/MIME/PGP for email that's pretty well supported almost everywhere.

While the government/police could use the terrorism act to force you to give up the passwords to encrypted texts/emails, you'd at least then know they were looking and it would be a PR field day if they did that to any journalists. (Especially if that had happened in this case).

Please explain which terrorism power this is, and how it works in this way.

The quote from the cop in that story about how you never know what kind of thing you'll turn up in these situations - makes it sound like they only ever use this search power to go on fishing expeditions.

How much oversight is there into whether police can look up phone records? It can't be that much, really. I once went to the police to complain that a guy who I lent my motorbike jacket to when he purchased my motorbike on TradeMe and turned up in a t-shirt and shorts to ride it home, had not returned my jacket and was not returning my calls. From nothing more than the guy's phone number, he tracked him down and clearly put the wind up him something chronic, because he came around that day to apologetically return the jacket (he lived waaay on the other side of town). I saw the policeman in the street a few days later and he said that you can find out a heck of a lot about someone just from who they called, and who they called called, and what they wrote. This was in 2006, I think.

The question now is not just how much you trust the executive, but how much you can trust an executive that presides over the screaming absence of constitutional empathy that this one does.

It should always have been the case, really. Even if a presiding executive is trusted, it's likely that an executive such as the current one, or some other which you might happen to dis-trust (if you somehow trust the current one), will be along sooner or later.

One of my regrets is that New Zealand is in the midst of scheduled constitutional and related reviews, such as for the electoral system and a constitution itself, which could fundamentally affect governance for decades or longer. The processes for these issues are likely to be politicised enough, even without being subjected to a PM and Cabinet which have demonstrated a destructive contempt for any constitutional processes which happen to be politically inconvenient at any given time.

I have read over the past few months about some outrageous behaviour by Key and National in general, but also that Key is polling very highly. So, what is it that's keeping him high in the polls? Someone obviously likes him (or National), so what is it they like?

So, what is it that’s keeping him high in the polls? Someone obviously likes him (or National), so what is it they like?

I have asked similar questions before and the answers I get just leave me further mystified. Apparently people perceive him as some ordinary bloke, the guy next door you happily share a few beers and a good yarn with. I don't get it, I see nothing like that in him.

Apparently people perceive him as some ordinary bloke, the guy next door you happily share a few beers and a good yarn with.

I think people make up all sorts of reasons, but I've heard it argued that, subconsciously at least, he's basically the kind of guy that many people want to become. (He's rich and successful, has a holiday home in Hawaii, he smiles a lot and everything's a breeze, etc.) He's the big marketing image of governing party. To vote against his ability to set the rules is like denying yourself the opportunity to do whatever he did and get $50 million like he did. Or something like that.

That might have something to do with it. In practice I think the lack of a cohesive opposition, the main party of which still hasn't figured out what to do since Helen Clark left, also has a lot to do with it.

I think the lefty counterpart to the fabulously wealthy "self-made" conservative leader would be some sort of a dragon-slayer, a cross between a firefighter and Erin Brockovitch. Hence the respect people still have for Lange's nuclear free business despite Rogernomics.

it casts an interesting light on the warning issued against Ambrose by Police Assistant Commissioner Malcolm Burgess

Seems pretty clear (to me, at least) what happened here.

(1) The PM made a complaint, which the Police jumped to investigate ('cause it's the PM making it in the midst of the election campaign, so the Police have to pretend it is A Very Important Matter);

(2) Ambrose gave a pretty reasonable account of how the taping came to happen, meaning there was no real evidence that the mental element of "intentionally" recording the conversation was met (or, at least, no evidence that would meet the "beyond reasonable doubt" test);

(3) So the Police went looking at Ambrose's texts, in the hope that these might reveal a discrepancy with his original story (or, even better, an outright confession that he intentionally taped the meeting) ... because it's actually pretty common for the cops to seek the records of a suspect's communications, and quite a few people are dumb enough to use their phones to put their guilt in writing (or, at least, textspeak);

(4) However, here the messages only reinforced Ambrose's story, meaning a prosecution would have been almost certain to fail;

(5) But announcing to the world "there is no real evidence that Ambrose did anything illegal" would have made Key look like a dick. So the Police did the "politic" thing - they sternly wagged their finger at Ambrose ("we had enough on you to prosecute (mumble, mumble)"), while not actually putting that "evidence" to the test.

Another slow news day in NZ peeps....this is not Egypt....thankfully....the bill was outdated, it needed updating most peeps agree, the 5 W's need to be agreed more fully I agree.....it gets the GSCB legal again for now (in terms of the law) and now perhaps time for debate before the next election as to how far the 5 W's go....seems fair to me....democracy in action.....3 year election cycles can be too short (to effect real economic change), but they also can be good if you don't like something.

As an aside I'm thinking of starting the Auckland Party to put up a sensible "Auckland First" view on all things NZ to indeed make it happen faster.....and put to bed the lesser NZ First, Greens and Labour options that currently exist...thoughts?

do I have this right? 1. PM complains to police that man has deliberately intercepted his private communications. 2. Police deliberately intercept man's communications, which show that man did not deliberately intercept PM's communcations. 3. Police insinuate that man deliberately intercepted PM's communcations.